Ross v. Buckeye Cellulose Corp.

• Decision Date: 11 August 1989
• Docket Number: Civ. No. 86-48-ALB/AMER(DF).
• Citation: 733 F. Supp. 344
• Parties: Issiah ROSS Jr., et al., Plaintiffs, v. BUCKEYE CELLULOSE CORP., Defendant.
• Court: U.S. District Court — Middle District of Georgia

733 F. Supp. 344

Issiah ROSS Jr., et al., Plaintiffs, v. BUCKEYE CELLULOSE CORP., Defendant.

Civ. No. 86-48-ALB/AMER(DF).

United States District Court, M.D. Georgia, Albany/Americus Division.

August 11, 1989.

COPYRIGHT MATERIAL OMITTED

James Finkelstein, Albany, Ga., for plaintiffs.

John G. Skinner, Smith, Currie & Hancock, Atlanta, Ga., for defendant.

FITZPATRICK, District Judge.

These actions were tried before a jury for four months, from September 6, 1988 to January 6, 1989, on discrimination actions brought pursuant to 42 U.S.C. § 1981. On December 21, 1988, the jury returned verdicts on the liability aspect of the cases, finding liability in only two instances: Plaintiffs Ross and Plant. After additional evidence on January 6, 1989, the jury returned damage verdicts as to the two prevailing Plaintiffs. The court entered final judgment on the Plaintiffs' section 1981 claims on March 21, 1989. Now before the court are the Title VII claims brought by eleven of the thirteen Plaintiffs. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq.

The Title VII claims of these Plaintiffs are premised on both the disparate treatment and the disparate impact theories of recovery. The court entered judgment on the individual disparate treatment claims of the Plaintiffs on March 21, 1989, pursuant to the Eleventh Circuit's holding in Lincoln v. Board of Regents, 697 F.2d 928, 934 (11th Cir.1983).¹ Regarding Plaintiffs' disparate impact theory of recovery, the court heard additional statistical testimony on May 1 and 2, 1989, and oral argument on June 27, 1989. Having carefully considered the entire record, the court sits prepared to rule on the remaining Title VII claims as set forth below in the court's Findings of Fact and Conclusions of Law.

Before the court embarks on this complicated history of the employment relations between Plaintiffs and Defendant, however, it must first address Defendant's Motion to Strike Portions of Plaintiffs' Proposed Findings of Fact and Conclusions of Law and Appendices. Defendant seeks to have this court strike certain portions of Plaintiffs' proposals on the grounds that: (1) Plaintiffs have identified a number of Defendant's employment practices never before questioned and not addressed by Defendant in its proposals; (2) certain of the Plaintiffs' arguments and appendices would require a reopening of the evidence which should not occur absent grounds which are not present here; and (3) Plaintiffs have attached certain documents as appendices which are not admissible as evidence, represent summaries of various exhibits, and have not been cross-examined by Defendant. The court briefly addressed these contentions at oral argument and trial, and will now rule appropriately.

As to the employment practices being attacked by Plaintiffs, the court finds that Plaintiffs are questioning Defendant's entire Pay and Progression System (the System), including all of its various elements. In order to attack any particular element of the System, Plaintiffs must assail the entire process. Thus the court will not strike any arguments regarding the several components of Defendant's Pay and Progression System preliminarily. On May 26, 1988, the court issued its Order granting summary judgment to Defendant on Plaintiff Ross' discharge claim of disparate impact. In that Order the court ruled that Plaintiff Ross' termination for "inability to perform job" was not a specific employment practice subject to disparate impact attack. The court will not vacate that ruling. Thus Plaintiff Ross' termination claim will not be analyzed in the context of this Order. Plaintiff Porter also claims that Defendant's subjective system of termination had a disparate impact on blacks. Specifically, Porter questions Defendant's `practice' of terminating employees for "absence and tardiness." The court finds that this "practice" is, like "inability to perform job," a general categorization by an employer used to discharge various employees from different types of jobs, and is not a discreet employment practice or procedure such as contemplated by the disparate impact theory of recovery. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 108 S.Ct. 2777, 2785, 101 L.Ed.2d 827 (1988). The termination policies of Defendant will not be examined here.

Defendant contends that Plaintiffs are attempting to reopen the record through their proposed Findings of Fact and Conclusions of Law by presenting new evidence and theories of recovery. This contention must be viewed in conjunction with Defendant's third ground for striking portions of Plaintiffs' proposals regarding the admissibility of certain of the documents appended thereto by Plaintiffs. As stated earlier, this Order will address Plaintiffs' disparate impact theory of recovery as it relates to Defendant's Pay and Progression System; no other theory of recovery will be discussed. The court and Defendant have both long been aware of the essential subject matter of Plaintiffs' claims. Only through the presentation of evidence was Plaintiffs' theory able to take positive shape and definition. As the evidence developed, the court itself was able to grasp the particular policies and practices which contributed to the entirety of the Pay and Progression System. Because of the necessary place which each element of the System holds in relation to the overall outcome, the court is compelled to allow Plaintiffs to attack the whole System and, necessarily, each of its elements. In arguing this theory to the court, Plaintiffs are allowed to present charts, graphs, summaries, and appendices to further their arguments as well as attempt to aid the court with these documents. While the documents appended to Plaintiffs' proposed Findings of Fact and Conclusions of Law may not be admissible as evidence, the court will not strike them for that reason alone. This portion of the case is being heard by the court sitting without a jury, and this court is more that capable of separating fact from argument. Lest Defendant forgets, this court sat through the entirety of the four month jury trial, ruling on each evidentiary question. The court is well aware of what was ruled admissible evidence. The court considers those documents attached as appendices to Plaintiffs' proposed findings of Fact and Conclusions of Law to be argument aids, designed to aid Plaintiffs' attorney in presenting the case, and the court in understanding. Accordingly, the court will proceed based upon the above rulings, by first setting out its Findings of Fact. These initial findings are simply a skeletal recitation of the facts in the case and the court will supplement them as necessary in its Conclusions of Law.

I. FINDINGS OF FACT

A. BUCKEYE'S FLINT RIVER PLANT

Plaintiffs in this action are all black, present or former, employees of Defendant Buckeye Cellulose Corporation.² Buckeye is an Ohio corporation and a wholly owned subsidiary of Procter & Gamble Paper Products Company (Procter & Gamble). Buckeye owns several plants in various states around the country including one in Macon County, Georgia, near Oglethorpe, known as the "Flint River Plant" (the Plant). The Plant processes raw wood into heavy sheets of paper which are eventually sold to other Procter & Gamble subsidiaries to eventually be processed into the absorbent material used in disposable diapers.

The Plant is divided into essentially five (5) main working areas: Unit 1, the Woodyard area; Unit 2, the Pulping Unit; Unit 3, the Product Unit; Unit 4, the Powerhouse Unit; and Unit 5, Plant Maintenance Services. Each of these areas serves an integral function in the processing of the raw wood products. In addition to the five general areas, the Plant also contains a technical unit (the Central Laboratory); an administrative division; and a lands and timber section. In order to better understand the operations of the Plant a brief overview of the function of each of the relevant operating Units is necessary.

Unit 1, the Woodyard, is where the wood products first enter the Plant, either on rail cars or in trucks. The wood is processed into one inch chips which are conveyed to the Pulping Unit. The Waste and Water Treatment area is also a part of Unit 1. Waste and Water Treatment include the processes by which the incoming and outgoing water for the entire Plant is chemically treated for use.

The Pulping Unit, Unit 2, is where the chips prepared in Unit 1 are put through a series of processes which separate the cellulose, the fibrous material, from the lignin and bleaches it into a white fiber.

The white fiber, or pulp, goes through a screening series in the Product Unit, Unit 3, to remove any remaining water. The pulp is then dried and rolled into large rolls, which are either stored in the warehouse, or placed directly onto trucks or rail cars for shipping.

Unit 5, Plant Maintenance Services, provides maintenance and support services to the entire Plant. Unit 5 consists of a welding and machine shop, vibration analysis, building maintenance, electrical and instrumentation (E & I), and a storeroom. Each of the other Units, however, employs maintenance personnel and, with the exception of the Woodyard, a group of E & I employees.

In 1979, Buckeye began preparations for opening the Plant with Manager Al Eppinger. Buckeye hired a preliminary group of employees, approximately 40 persons, in December, 1979. This first hire group, known as "tech trainers," were responsible for learning the different jobs at the Plant in the various Units and developing the training program for those employees to be subsequently hired.

Buckeye began hiring the majority of its work force in the Summer of 1980. The new employees, called "technicians,"³ were hired in stages, with particular starting dates, either June 9, July 8, August 11, or September 9, 1980. In addition, there were two subsequent, smaller hire groups. The technicians were...